Phoenix EMS Pty Ltd v Koekstone IP Pty Ltd [2026] APO 11

"He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious."[6]

1. The hypothetical skilled person works in the field with which the invention is connected and is a non-inventive person or team likely to have a practical interest in the subject matter of the invention.[7]

1. The Opponent submitted that the PSA would be a mechanical engineer, mechanical designer, design draftsman, or someone with equivalent skills and experience. Such skills and experience would include "the ability to generate geometry, select materials, and analyse the response of a design and whether that design meets the functional requirements of the item in question."[8]

1. The Applicant agreed with this general characterisation of the PSA.[9] I see no reason to pursue a different characterisation of the PSA; the skills and knowledge put forward seem entirely appropriate to make the proposed invention.

1. Mr Spry is presented as the expert for the Opponent. He has been a mechanical engineer for over 50 years and has been a member of the Institute of Engineers Australia for over 40 years. He lists his background as including static and dynamic mechanical systems, control systems, and root cause failure. Amongst others, Mr Spry has been involved in crane analysis, equipment design analysis, product development and patent review, and component failure analysis.

1. Mr Hughes is presented as the expert for the Applicant. He has been a mechanical engineer for over 25 years and has runs his own business specialising in design and development of mechanical engineering products for over 10 years. He notes that he has managed product development teams and that he was engaged by the Applicant in an earlier design of a swivelling joint which could be produced via casting.[10]

1. Both parties accept that each expert is suitably qualified to represent the knowledge and skills of the PSA. I have also considered the qualifications and experiences of the experts. I am of the view that both experts can provide evidence as to what the PSA knew at the relevant time. Where there is conflicting evidence I will provide reasoning for preferring one expert over the other.

1. The rules of construction are well established. Jupiters v Neurizon[11] provides a useful summary:

"(i) the proper construction of a specification is a matter of law: Décor Corp Pty Ltd v Dart Industries Inc [1988] FCA 399; (1988) 13 IPR 385 at 400;

(ii) a patent specification should be given a purposive, not a purely literal, construction: Flexible Steel Lacing Company v Beltreco Ltd [2000] FCA 890; (2000) 49 IPR 331 at [81]; and it is not to be read in the abstract but is to be construed in the light of the common general knowledge and the art before the priority date: Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8; (2001) 207 CLR 1 at [24];

(iii) the words used in a specification are to be given the meaning which the normal person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification: Décor Corp Pty Ltd at 391;

(iv) while the claims are to be construed in the context of the specification as a whole, it is not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification, although terms in the claim which are unclear may be defined by reference to the body of the specification: Kimberley-Clark v Arico at [15]; Welch Perrin & Co Pty Ltd v Worrel [1961] HCA 91; (1961) 106 CLR 588 at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1; (1973) 130 CLR 461 at 478; the body of a specification cannot be used to change a clear claim for one subject matter into a claim for another and different subject matter: Electric & Musical Industries Ltd v Lissen Ltd [1938] 56 RPC 23 at 39;

(v) experts can give evidence on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings to be given by skilled addressees to words which might otherwise bear their ordinary meaning: Sartas No 1 Pty Ltd v Koukourou & Partners Pty Ltd [1994] FCA 1529; (1994) 30 IPR 479 at 485-486; the Court is to place itself in the position of some person acquainted with the surrounding circumstances as to the state of the art and manufacture at the time (Kimberley-Clark v Arico at [24]); and

(vi) it is for the Court, not for any witness however expert, to construe the specification; Sartas No 1 Pty Ltd, at 485-486."

1. There are several terms and features within the claims on which this opposition turn.

1. Neither party made any submissions on the phrase "swivelling joint", and I will therefore take this to be the plain English meaning of a joint which enables rotational movement. In order to solve the problem identified in the specification the rotation needs to be around an axis which does not coincide with the longitudinal axis of the first or second leg. Similarly both parties agree that "for use" should be construed in the usual way whereby the swivelling joint must be "suitable for" the use which follows.[12]

1. The Opponent and Applicant have significantly different positions on the definition of a "light pole". The Opponent submitted that the term light pole is not a technical term in the art, and therefore any pole which has a light on it satisfies the criteria. This includes both indoor and outdoor items such as desk lamps, garden path lights, and streetlights. They further submit that the light pole may be used indoors or outdoors, and that the pole can be of any reasonable length. Mr Spry noted that there are no structural limitations in the claim, and that "the light or pole could be any size or shape".[13] He further noted that that the height of a pole is related only to achieving the goal of a specific illumination area, and height requirements of over 2m "relate to the specific installation requirements, not the light pole." Mr Spry also stated that a mechanism to lower the height of a light fixture may tend to apply to higher light poles, but is not a fundamental requirement.[14]

1. The Applicant also agrees that "light pole" is not a technical term of art, but notes that Wikipedia categorises it as a streetlight, giving further synonyms such as lamp pole, lamppost and streetlamp.[15] Mr Hughes, for the Applicant, said that a light pole needs to be higher than 2m to provide sufficient light to the surrounding area. He also identified that Australian Standard AS1170.2 (Structural design actions, Part 2: Wind actions) would need to apply to the pole and provided some estimates for torsional forces and minimum section modulus for what he considers a light pole to be.[16]

1. The Applicant further submits that the term "pole" should be read using a plain meaning and submitted that the Macquarie Dictionary defines pole as "a long, rounded, usually slender piece of wood, metal, etc."[17] They submitted that a garden light post was not within the scope of the term. During the hearing the Applicant also stated that a pencil is not a pole, but a rod about 60cm could possibly be considered one, but did not want to be bound by specific dimensions or weights.

1. The specification does not give any assistance in identifying a precise definition of a light pole. The specification describes the preferred use of a pole in terms of elongate members at [0019], and states that the length should be at least 1.5m. Noting this minimum length limitation appears in Claim 9, it must also be the case that lengths of elongate members under 1.5m are within scope for Claim 1.

1. I could not identify any paragraph in the description which indicates that only outdoor use is required. While I readily accept that a streetlight is a type of light pole, and that streetlights would in all likelihood need to comply with construction standards as indicated by Mr Hughes, I am not convinced that the term should be construed so narrowly. Similarly, I am not persuaded that the Applicant's logic of stating that garden light posts could not be considered garden light poles. As noted above, streetlight is also synonymous with lamppost. I do not see any technical distinction between the choice words "post" and "pole", apart from noting that a pole is generally round and a post need not be.

1. The specification states that the Swivelpole "has become an important safety feature in many industrial, mining, and oil-and-gas installations."[18] The terms "industrial" and "installation" are broad terms and include locations such as inside a factory, warehouse, or a control room. Further, mining can be below-ground where the environmental conditions differ substantially from open-cut mines. Wind loading does not need to be a relevant consideration for these locations. It is not apparent from the specification or claims that resistance to wind loading is an essential requirement.

1. I generally agree that a pole has a reasonable dimension associated with it, and the length of 0.6m seems to be an appropriate approximation for a minimum length. There is also likely to be a maximum length which neither party engaged with. For example, a 20m high light tower at a sporting venue would not be within scope.

1. I consider that a light pole is exactly what the terms indicate, a light on a pole. It follows that the whole feature should be construed as a pivotable joint which is suitable to be used for a round post which has a light affixed to it. Such a light pole could be for indoor or outdoor use and would include outdoor uses such as a streetlight, or indoor uses such as a pedestal (floor) lamp. However, it would not include a desk lamp, relatively short garden lights (say under 40cm in height), or to overly large lighting structures.

1. In choosing a broad term such as "light pole" with only functional limitations the Applicant has elected to maximise their potential monopoly. But, in so doing, the Applicant has run the risk of a broader array of prior art potentially falling within the scope of the claim. In cases where claim drafting is such that a purposive construction approach is desired, details need to be included in the specification which would enable such an approach.

"a tapered connection portion between the associated leg and the associated bearing face"

1. The parties generally agree that a tapered portion represents a sloped area which modifies the cross-section of the component. This is consistent with the plain English meaning of a "gradual diminution of width or thickness in an elongated object."[19] The Opponent's position is that the feature is only defined functionally, and that any sloped section between the leg and the bearing face is sufficient to satisfy the feature. The Applicant submits that this needs to be a "separate and distinct tapered connection portion". They further submit that [0006] of the specification indicates that any tapering must be internal.[20]

1. I am not persuaded by the Applicant's submissions. A plain reading of the feature gives no indication that the tapering should be internal. Further, [0006] of the specification provides no reason why the tapering should be internal. While I do accept that [0055] indicates an internal tapering connection is used for item 38 I note that items 28 and 42 would be considered an external tapering. The claim has been worded such that any of these components are appropriate.

1. A second area of contention is whether the tapered connection portion needs to be an entirely separate area or component to the bearing face and leg. Mr Hughes stated that the tapered connection portion is a separate item to the legs and highlights item 28 in Figure 3 (not reproduced, but observable in Figure 4).[21] Mr Spry disputes this stating that a "tapered connection portion is simply a geometric feature intended to 'open out' the throat of the pole cavity ... and whether it starts to open out on the leg or the first or second member makes no functional difference."[22]

1. The specification states that a goal of the invention is to obtain a joint which is formed without welding, such as via casting and machining[23]. There is no further description on how the items are manufactured. There is also no information on assembly of either the first member or second member, whereas other components which are to be assembled are addressed. As a result, the specification implies the connection portion is not a separate component. Rather the first member is a unitary structure, as is the second member. The connection portion is merely an area of one of these unitary structures.

1. The limitations of the first and second leg arise from features 1.2 and 1.3. These features define the first and second member being associated with a first and second leg respectively, each leg having a longitudinal direction. There is no further definition or limitation regarding what constitutes a leg, and the leg could have any cross-section subject to the requirement for a void suitable for enclosing electrical cabling as per feature 1.7. The first and second member each have a bearing face oriented at an acute angle relative to the respective leg. Each bearing face includes an opening in communication with the respective leg.

1. Using the purely functional definitions, any part or portion which is located between the bearing face and the leg would therefore constitute a connection portion. As first and second members are each unitary structures, identifying exactly where the leg portion begins and ends may be entirely subjective. There is nothing claimed which would indicate the connection portion may not comprise parts which are generally leg shaped. Using Figure 2 as an example, the leg portion may be construed as item 20 and the connection portion as the combination of item 18 and 28, of which the tapered portion being limited to item 28.

1. Thus, I consider a tapered connection portion to be any portion which connects the bearing face to a leg, provided that some part of that portion is tapered internally or externally.

"a skirt arranged to locate about the bearing face of the first member"

1. Both parties submitted that a technical definition of skirt should be adopted instead of a plain English meaning. Both parties generally agreed that a skirt is "a cover, sealed a [sic] one end and open at the other."[24] I also agree with this general definition. The primary difference in construction between the parties lies in whether the skirt needs to fully enclose the first member, or whether a partial or discontinuous covering was sufficient to be considered a skirt.[25]

1. The general definition given above indicates that the cover must be sealed at one end and open at the other. This indicates that the end which is sealed needs to be continuous, else it could not effectively perform its function of sealing that end. Other technical terms cover partial covers, such as flap, lid, or even the broader concept of a cover. The next part of the feature is that the skirt is "arranged to locate about the bearing face". The Macquarie dictionary indicates the following definitions of "about" which seem appropriate:

3. somewhere near or in: she is about the house.

5. on every side of; around: the railing about the tower.

1. Definition 5 is also consistent with the definition of a continuous skirt which is capable of sealing one end. Consequently, I am construing the feature to be a skirt which completely wraps around the bearing face of the first member.

Claim 8: An elongate member for locating articles remote from a base position having a swivelling joint as claims in any one of claims 1 to 7.

1. While not discussed by either party, it is necessary to construe Claim 8. The "for" in "for locating articles remote from a base position" should be construed as "suitable for", and it needs only be suitable for the function which follows. There is no information in the specification for what an "article" is beyond the consistory clause at [0019]. Thus "article" should be given its plain meaning of "any thing".[26] This 'thing' includes internal electrical cabling, luminaires, LEDs, bulbs, and almost any other object for which Claim 1 is suitable to be used for. Similarly, the specification does not use the phrase "base position" anywhere except in the same consistory clause. While the specification does refer to base 22 in several locations, the component described is an internal component of the swivelling joint.[27] There is no disclosure of how an elongate member can be attached to it. The only other mention of a 'base' or anything similar is in [0084], where it is used as follows:

"The first leg 118 terminates at a pole receiving aperture 120, which forms a cylindrical sleeve arranged to connect to a pole (such as the base of a light pole) by suitable means such as clamping or welding."

1. This makes the most sense in the context of the invention and I will consider "base position" to be the portion of the elongate member which connects to the ground or similar location at the bottom of the elongate pole.

1. I append the "having a swivelling joint ..." to the elongate member, the phrase "elongate member" being self-explanatory. Thus, the whole claim can be construed as an elongate member having a swivelling joint as claimed in any of claims 1-7, wherein the elongate member needs to be suitable for locating any item or thing away from where the elongate member is affixed to the ground or similar mounting location.

1. Novelty is set out in subsection 18(1)(b)(i), which relevantly states:

"(1) Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:

(b) when compared with the prior art base as it existed before the priority date of that claim:

1. It is well established, and agreed between the parties, that the basic test for whether an invention lacks novelty is the "reverse infringement test" set out by Meyers Taylor Pty Ltd v Vicarr Industries Ltd[28]:

"The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement."

1. In addition, authority was cited from General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1972] RPC 457 ("clear and unmistakeable directions to do what the patentee claims to have invented", "planted his flag at the precise destination") and Apotex Pty Ltd v Sanofi-Aventis [2008] (Apotex) FCA 1194; [2008] FCA 1194; 78 IPR 485 at [91] "Anticipation is deadly but requires the accuracy of a sniper, not the firing of a 12 gauge shotgun."

1. D3 is a US patent which was published and granted in 1926. The invention describes a universal pipe joint which is designed to permit "freedom of adjustment of the pipes connected by the joint and at the same time provide for a maximum range of relative adjustment of the said pipes." Thus, it is a swivelling joint.

1. D3 Figures 1-3 are reproduced below. The figures show first leg 1, first bearing face 9, second leg 2, second bearing face 13, where the bearing faces are at an acute angle relative to the longitudinal direction of the leg. Cap ring 18 is secured by stud bolts 19, or bolts and nuts, to prevent axial movement of the first member relative to the second member. A hollow void free of mechanical linkages can be observed passing through the centre of both components. Flanges 14 and 17 extend beyond and are located around bearing face 9. They can therefore be considered to be a skirt.

1. Mr Spry, for the Opponent, submitted that sufficient tightening of bolts 19 would apply a compressive force via the interaction of items 1, 14, and 16-19 to lock rotation of the joint. He clarified that the degree of tightening of bolts 19 would determine whether there is free rotation of the pipes or whether they are locked in position.[29]

1. Mr Spry stated that at least one of the first and second members required tapering, but provides no further context on where he obtains this information from or which component he refers to. During the hearing I requested clarification from the Opponent on where they considered feature 1.6 to lie. The Opponent submitted that Figures 1-2 show that item 6 provides the tapering.

1. The Applicant only disputed features 1.1 - suitability for a light pole, and 1.5 - locking means to restrict rotation. Regarding item 1.1, Mr Hughes states that the invention of D3 would not withstand wind loading on the luminaire and on the pole. His evidence states that the joint would rotate in a light breeze.[30]

1. Mr Hughes also stated that there was no locking mechanism which prevented rotation, and therefore item 1.5 was not disclosed. To support this Mr Hughes highlighted D3 Col 3 lines 22-25, claiming that free relative swivelling movement teaches away from locking. It was further submitted that the lack of a locking mechanism to limit this rotation meant the joint was not suitable for use as a swivelling joint in a light pole.

1. Noting they weren't challenged, I am willing to accept that features 1.2, 1.3, 1.4, 1.7 and 1.8 are disclosed in D3 as given above. Regarding feature 1.6, while a taper would ordinarily be considered to have a linear change in dimension, non-linear tapers are known to exist. As this feature was not discussed or challenged by the Applicant at the hearing I am willing to accept that D3 item 6 may be considered a tapered connection portion between a leg and bearing face. Delving deeper into whether it is actually a taper or not does not alter the result of D3 for any opposition ground.

1. The key dispute regarding D3 is whether the locking mechanism identified by Mr Spry does in fact lock, or whether Mr Hughes' interpretation of free-movement is correct. It is useful to replicate the following excerpt from D3 Col 3 L1-27. (emphasis added)

"The offset 14 of the head of the section 2 is provided with a circumferential flange 17 which projects from the plane of the seating face 16 and surrounds the said face as well as the periphery of the flange 7, the depth of the flange 17 being substantially equal to the thickness of the flange 7. A cap ring 18 is secured by stud blots 19 or bolts and nuts, if preferred, to the offset 14 of the head 12 of the section 2, the said bolts being fitted through ears or lugs 20 formed upon the peripheries of the offset and the cap ring, as clearly shown in Figures 1 and 3 of the drawings. The outer periphery of the cap ring 18 is in registration with the outer circumferential surface of the flange 17, but the cap ring is of a width, at any point in its circumference, greater than the thickness of the flange 17, so that the inner peripheral portion of the cap ring overlies the flange 7 of the head 6 of the section 1 in the manner best shown in Figure 2 of the drawings and serves to hold the heads together in their properly assembled relation, it being understood, of course, that the heads may have free relative swivelling movement."

1. From reading the above excerpt, and with reference to D3 Figure 2, two possibilities arise based on the depth of flange 17 relative to the thickness of flange 7. Firstly, if flange 7 is thicker than flange 17 then it becomes possible for tightening of the bolts to apply pressure between items 14, 7 and 18. This would have the effect of applying friction between the components, thus reducing the amount of rotation between the components. This would correspond to how Mr Spry has presented his evidence. In the alternative, if flange 7 is thinner than flange 17 then the joint will be able to freely rotate irrespective of how much torque is applied to the bolts. I believe this to correspond to how Mr Hughes has construed D3.

1. The first portion I have emphasised says the depth of flange 17 is substantially equal to the thickness of flange 7. It does not make it clear, explicitly or implicitly, that clamping may be achieved between components. Further, noting the passage also states that the "heads may have free relative swivelling movement" this adds sufficient ambiguity that I cannot conclude with any confidence that flange 7 should be thicker than the depth. Rather, it lends weight to the Applicant's position that the joint cannot be locked into a particular orientation.

1. I cannot find that D3 clearly and unambiguously discloses a feature which restricts the rotation of the first member relative to the second member. Feature 1.5 is therefore not present in D3 and, consequently, Claim 1 is novel over D3, as are all dependent claims.

1. D5 is a US patent which was published in 1932. It is directed towards a swivel connector fitting for conduits and similar objects. The patent discloses two separate embodiments. The first embodiment is best understood with reference to Figures 1-5, reproduced below.

1. The figures show first member 10, first acute-angled bearing face 19, second member 11, and second acute-angled bearing face 20. Locking ring 21 is used to prevent axial movement and, when locking ring 21 is tightened, to limit the rotation of the first leg relative to the second.[31]

1. The cross-sections show that there is a void running through the middle of both components, through which electrical cabling is to be run. As shown in Figures 2 and 4, the components are "flared" along one axis to provide for swivelling such that it maps onto circle 14.[32] The effect of the flaring above is to change the shape of the interface between the two components. An angular cut of a cylindrical pipe implicitly produces an ellipse-shaped interface, an ellipse being a uniform type of oval. The flaring modifies the ellipse's minor axis such that there is a circular cross-section where the pipes are to meet.[33]

1. The Opponent submitted that locking ring 21 provides for all three of functions 1.4, 1.5, and 1.8. That is, it prevents axial movement between the first and second bearing face when installed, locks the rotation when locking ring 21 is tightened, and acts as a skirt to limit dust/dirt and is arranged around bearing faces 19 and 20. The Opponent also submitted that the flared portion represented a tapered connection portion, and that such a joint was suitable for a light pole.[34] During the hearing the Opponent accepted the Applicant's position that D5 would not be useful for an outdoor streetlight which is subject to wind, but reaffirmed their position that the claimed light pole was not limited to such outdoor structures.

1. The Applicant disputes that the invention is suitable for use in a light pole, maintaining that the design of D5, when subject to wind loading, would lead to self-loosening of threads. Mr Hughes also disputes the presence of a tapered connection portion, stating that the portions identified by the Opponent appear to be part of the legs, not a separate connection portion.[35]

1. The flared portion as shown in D5 Figures 2, 4, and 7 show a sloped area which gradually changes an (implicit) ellipse cross-section from the standard pipe into a circular cross-section. While the shaping is not uniform in two dimensions, the overall cross-section is modified in a gradual manner. I am persuaded that the flared portion may be construed as a tapered portion.

1. The flanged bearing faces, items 19 and 20, connect directly to the flared portion. Noting my construction of a tapered connecting portion above, the leg may be construed as the threaded portions 17 and 18, and the connecting portion everything from items 17 or 18 to the respective bearing faces. My construction is such that Mr Hughes' comments regarding the leg being separate does not arise. As the portions are flared out in a relatively gentle manner, the connecting portions are considered to be tapered.

1. During the hearing, and noting the Applicant's preferred construction of the term tapered, I also asked both parties whether the tapered connection portion could be construed as the angled internal areas near each of the threaded sections shown in Figures 3-5. The Opponent agreed with and adopted that construction as an alternative to their characterisation of the flared portion. The Applicant noted that this characterisation was not in evidence but conceded that it could possibly be construed as a tapered connection portion.

1. It is apparent to me that this also meets the claimed criteria of a tapered connection portion between the leg and the associated bearing face. It also satisfies the Applicant's preferred construction of an internal tapered connection portion. Thus, there are two separate ways which D5 discloses a tapered connection portion between the associated leg and bearing face.

1. The Applicant's primary point of contention regarding suitability is related to loosening of the thread. Mr Hughes identifies that wind would be sufficient to provide such thread loosening. The result of thread loosening would ultimately be loss of rotation locking followed by free rotation of the joint. [36] The implication being that uncontrolled rotation might ensue which could lead to a safety hazard for people nearby and loss of the desired illumination.

1. The Opponent maintains that D5 is suitable for use in a light pole. Mr Spry submitted that ring 21 would routinely be designed and tensioned to prevent it loosening. He also submitted that it "is routine and common for engineers to size components to create a greater force where needed based on the specific design constraints."[37]

1. My construction of "a swivelling joint for use in light poles" does not require resistance to wind loading, is not limited to particular uses in indoor or outdoor areas, and does not have any requirements beyond being a light on a pole. It follows that thread loosening via wind is not a reason which would prevent D5 from being suitable for use in a light pole. Nor does Mr Hughes give any further technical reasons why such a joint is unsuitable for use in this more broadly construed light pole.

1. In response to Mr Spry's comments on routinely designing and tensioning of ring 21, the Applicant argued that any modification to any component, whether routine or not, prevents this from being a clear and unmistakeable direction.[38]

1. I am not persuaded by this argument. The following portion of D5 makes it apparent to anyone who is to implement D5 that they would need to design the clamping ring such that it can be tightened to the extent that the abutting elements may be secured at a desired orientation: (emphasis added)

"It will be understood that by loosening the clamping ring, parts 10 and 11 can be swiveled to any desired angle and thereafter the clamping ring can be tightened up to secure the abutting elements in the desired relative angular relation."[39]

1. I am persuaded that D5 could be suitably tensioned to maintain the desired angular rotation. It follows that D5 is suitable for use in a light pole as I have construed the term.

1. Every single feature of Claim 1 is disclosed by D5, and Claim 1 therefore lacks novelty.

1. Claim 2 requires that the opening of the bearing face of the first member is circular. I agree with the submission by Mr Spry that this is disclosed in D5 Figure 6 item 14 (not shown). Item 14 is also shown in Figures 1-2, noting that the opening of items 15 and 16 both map onto circle 14.

1. Claim 3 requires that the opening of the bearing face of the first member is oval. This is not disclosed in D5.

1. Claim 4 requires that the opening of the bearing face of the second member is circular. I agree that this is disclosed in D5 Figure 6 item 14 (not shown), noting that the opening of items 15 and 16 both map onto circle 14.

1. Claim 5 requires that the opening of the bearing face of the second member is oval. This is not disclosed in D5.

1. Claim 6 requires the use of a locking pin. This is not disclosed in the first embodiment of D5. In the second embodiment a series of screws are used instead of ring 21. There is sufficient difference between a screw and a locking pin that Claim 6 is not disclosed. Claim 7 depends on Claim 6 and is therefore not disclosed.

1. Claim 8 requires an elongate member having the rotating joint of Claim 1. D5 does not disclose this feature, it only discloses that the joint is suitable for use with such elongate members. Claims 9-10 depend on Claim 8 and are therefore not disclosed in D5.

1. The second embodiment of D5 (not shown) contains an alternate clamping method. It replaces locking ring 21 with inwardly pointing fingers, one of which has a screw to secure the two members together. Both parties made submissions regarding whether this second embodiment was sufficiently enabled. It is not necessary to determine this. Rather, it is sufficient to note that the replacement of locking ring 21 also removes the feature which provides the skirt. The second embodiment does not disclose each and every feature of Claim 1.

1. In conclusion, Claims 1, 2, and 4 lack novelty with regards to the first embodiment of D5. Every feature in these claims is disclosed in D5.

1. D8 is a US patent application which was published in October 2008. The invention is directed towards an angle-adjustable connector for armoured, flexible electrical cables. The invention is best described with reference to Figures 7A-8B, which I have reproduced below.

1. Figures 7A-7B show the connection of a first member to a second member, items 12 and 30, at different orientations. Each member has a leg portion, threaded area pointed to by items 12 and 30, and an acute-angled bearing face, items 14, 44. In use, locking nut 34 is rotated on thread 52 such that it presses flange 14 into dovetail 32. As per D8 [0061], the friction is designed to both limit axial motion and prevent rotation of the members. Figure 8B shows a void running through the centre of both members through which electrical cabling can be run.

1. The Opponent submits that the unlabelled angled portion pointed at by arrow 10 in Fig 7A, which is also the angled portion in Figure 8B between items 18 and 34, satisfies the tapered connection criteria for feature 1.6. They further submit that dovetail 32 is sufficient to satisfy the skirt criteria of feature 1.8. They also state that broad definition of light pole means that such joint is suitable for use in a light pole.

1. The Applicant disputes the above, stating that wind would introduce cyclic transverse loading which would loosen thread 34. Such loosening would cause the upper portion of a pole to rotate and collapse.[40] The result is that the joint is not suitable for use in a light pole. The Applicant disagrees that a tapered connection portion is present, relying on their construction that it needs to be a separate component from the leg.[41]

1. Mr Hughes submits that dovetail 32 is not suitable for use as a skirt, as it would not sufficiently limit the ingress of dirt and/or water.[42] The Applicant also challenges the Opponent's construction of the term skirt, noting that dovetail 32 only extends around a portion of the external diameter of the member.[43]

1. Based on the construction I have taken above, I agree that a tapered connection portion exists between a leg and its associated bearing face. As above, it is the angled potion roughly pointed to by arrow 10 in Figure 7A. Feature 1.6 is therefore disclosed in D8.

1. However, my construction is such that the skirt needs to wrap entirely around the bearing face. D8 only wraps around a portion of the bearing face. It follows that feature 1.8 is not disclosed in D8. It is therefore unnecessary to determine whether this particular joint is suitable for use in a light pole or not.

1. D9 is a US patent application published in 2009. It has the same inventor as D8 and, unsurprisingly, has a large number of similarities to it. Figures 3 and 5 show the key differences D8 and D9.

1. As per D8, the invention consists of two separate members, items 12 and 14, which have legs and an acute-angled bearing face, items 24 and 30. Locking nut 18 is used to press against clamp 16. This tightening pushes retainer portion 36 of clamp 16 onto flanged end 24. The result is the other side of flanged end 24 is pressed into dovetail 42.

1. The submissions by the Opponent and Applicant follow the same general reasoning as per D8. The Opponent submits that the tapered section is that pointed at by arrow 10, the skirt being the dovetail 42, clamp 16, or a combination thereof. Similarly, the Applicant disputes the presence of the taper, the presence of the skirt, and the suitability of use in a light pole.

1. For the same reasons as per D8, I agree that there is a tapered connection portion as per claimed feature 1.6. However, I do not agree that the dovetail 42, clamp 16, or their combination can be construed as a skirt around the bearing face. Consequently, feature 1.8 is not present in D9 and the claimed invention is novel over D9.

1. Subsection 7(2) states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the art in light of the common general knowledge (whether in or out of the patent area) before the priority date of the relevant claim when considered alone or together with the information mentioned in subsection 7(3).

1. Subsection 7(3) defines the relevant information as:

"The information for the purposes of subsection (2) is:

(a) any single piece of prior art information; or

(b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined."

1. Nicholas J provided a succinct statement of principles relevant to assessing inventive step in Hood v Bush Pharmacy Pty Ltd:

"Section 7(2) of the Act uses the word 'obvious' in the course of describing what must be established before an invention can be held not involve an inventive step. Something may be 'obvious' in light of the common general knowledge, or the common general knowledge coupled with the relevant s 7(3) information, if it is 'plain or open to the eye or mind, something which is perfectly evident to the person thinking on the subject' or something which 'would at once occur to anyone acquainted with the subject and desirous of accomplishing the end'.

An invention may also be obvious in light of the common general knowledge if the person skilled in the art faced with the same problem as the inventor would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not or (using the language of the 'modified Cripps question') if the person skilled in the art would be directly led as a matter of course to take such steps in the expectation that doing so might well produce a useful or better alternative to the prior art. However, a claimed invention is not obvious merely because the person skilled in the art would consider that it was 'worthwhile to try'."[44]

1. In order to minimise the possibility of ex post facto analysis, I will utilise the problem-solution approach. The Applicant and the Opponent have utilised this approach to a large extent.

1. Both parties accept that the specification at [0004]-[0006] identifies the problem.[45] In short, the problem that the present invention is directed towards is making improvements to the Swivelpole as described in D11, WO 01/25687 A1. In particular, it aims to:
   • Redesign the joint so that it does not require welding;
   • Modify the open joint to reduce water and dust entry; and
   • Reduce snagging and wear of cables within the narrow connection.

"... common general knowledge includes the configuration of movable joints across different applications, means to raised and lower poles such as light poles, means to lock movement of items such as bolts and pines [sic], wiring requirements for light poles and design requirements such as electrical and mechanical sealing."[46]

1. Mr Spry identified particular skills as being relevant to the person skilled in the art and, by reference to these skills, implies that each is common general knowledge.[47] The skills including: development of designs from functional specifications, structural adequacy of support components, movement of components and internal subcomponents, electrical and materials engineering, manufacturing, and design of machines which include rotating shafts, moving joints, bearings, pins, brakes, couplings, locks, gears, springs, seals, etc.[48] Some example textbooks are given for the italicised skills.

"... the common general knowledge held by such a person skilled in the art would have included a broad range of mechanical design skills including, at least: support structure design, mechanical joint design, seal design, lock and joint control design, electrical consideration in design, and means and consideration of manufacturing of such structures and joints."[49]

1. Mr Hughes did not address any of these points. Rather the Applicant argued that insufficient evidence has been provided to establish any of these as being common general knowledge and that the Opponent has not met their onus.

1. This raises an interesting quandary. Should I accept that there is insufficient evidence of the items being common general knowledge then the functional claiming utilised by the Applicant could give rise to support problems which were not pursued by the Opponent. But, should I not accept the Applicant's submission, then there are only a few broad concepts and skills with only a vague textbook reference on which I can inform my decision. Neither seem to be overly satisfactory options.

1. Mr Spry has only given a general indication of fields which would be known, rather than specific details of common general knowledge. But, in this instance, this general indication exceeds what has been supplied by the Applicant's experts. Thus, on the balance of probabilities, I agree that the skills advocated by Mr Spry would, more likely than not, contain elements which could be considered common general knowledge. However, the evidence does not suggest which items are necessarily common general knowledge. I will therefore engage in whether I consider specific components or features to be common general knowledge as and where they occur.

1. D1 (WO 2013/152396 A1) is the Applicant's own prior art and was published on 17 October 2013, before the earliest priority date of the present application. D1 is also directed towards making improvements to the Swivelpole design of D11, and it aims to address the following problems:
   • Redesign the joint so that it does not require welding;
   • Modify the open joint to reduce water and dust entry; and
   • Removing the requirement to loosen four bolts to enable/disable rotation.[50]

1. The final problem to be solved in D1 is different from the current application, and this was highlighted by the Applicant.[51] Unsurprisingly, there are a lot of similarities between the present application and D1 given they both aim to address common problems identified with the Swivelpole. D1 is best described with the aid of the Figures 1, 4 and 6.

1. The figures show first member 12, first leg 18, first acute-angled bearing face 30, second member 14, second leg 22, and second acute-angled bearing face 40. Central bolt 46 is used to prevent axial motion of the first member relative to the second member. When tightened central bolt restricts rotation of the first member relative to the second. An additional locking pin system, items 52, 54, 56, interact with apertures 32 to provide additional restrictions on rotation. Conical portions 26 and 36 connect each leg portion to the respective bearing faces. Figure 6 shows a void which passes through both the first and second members such that electrical cabling can be run[52].

1. Mr Spry identified that the skirt is disclosed in cylindrical sleeve 38. I mostly agree. Based on the figures and text,[53] it is the cylindrical sleeve 42 portion of the overall cylindrical sleeve 38 which extends beyond bearing face 40 and wraps around bearing face 30. Thus, it is the cylindrical sleeve 42 portion of cylindrical sleeve 38 which acts as the skirt .

1. The Opponent contends that every integer of Claim 1 is disclosed, excluding the hollow void being free of mechanical linkages. The Applicant has not challenged the presence or absence of the above features. After reviewing D1 I concur with the Opponent's assessment of which features are disclosed, subject to the caveat above regarding the skirt.

1. The Opponent submits that, in light of the problems to be solved, D1 solves the first two problems and therefore the person skilled in the art only needs to solve the third problem of snagging and wear of cables. Mr Spry states that this problem may be overcome via the provision of a hollow bearing assembly with a central sleeve, where the sleeve provides a bearing function or a slew ring bearing configuration with an open central section.[54] Mr Spry also submits that this would mean the central bolt can be removed and an alternate connection means could be employed instead.

1. Mr Hughes counters this, stating that the central bolt is the "essential main feature" of D1 "and to remove it would require essentially a complete re-design".[55] In response, Mr Spry submits that such a re-design would only involve steps which "any competent engineer would be able to take." The Applicant also submitted that Mr Spry has used hindsight analysis, and that D1 does not suffer the problem of snagging or wear of cables within the narrow connection.[56]

1. In his evidence, following presentation of D11 and only the background of the present application, Mr Spry identifies that the problems would, in part, be solved by the addition of a rotating bearing to widen the through-passage for any cable. He also identified that a cover or seal would be required to stop ingress of dust and/or water.[57] His initial thought to solve the problems of D11 are to:

"In view of the above, my first thought to solve the problem of the Patent involves a two-part bearing housing with a cast upper section that seats over a lower section and provides a rotational annular bearing. The bearing would need to have some kind of interface to stop the bearing pulling part and a lock such as a pin to secure the bearing housing in a desired position."[58]

1. Then, after being shown the rest of the present application and commenting on construction and novelty in relation to citations D3, D5, and D8-D9, Mr Spry is presented with D1. Mr Spry then comments on how he would modify D1 based on the problems identified, but applied to D1 rather than D11.[59]

1. Noting the above procedure, I am concerned that Mr Spry has inadvertently utilised hindsight reasoning while evaluating D1. If I refer to the solution Mr Spry gave prior to reading this application (Spry1 at [44], reproduced above), it essentially matches what is disclosed in D1. The joint is redesigned such that it does not require welding, and the skirt portion reduces the entry of water and dust. The narrow connection portion of D11 has been opened out to at least the diameter of the legs, thereby solving or at least reducing the problem of cables becoming snagged or worn due to passage through a narrow connection passage. While a connecting pin is present in the modified void of D1, this does not mean that the original problem is not adequately solved. The narrow connection is no longer narrow. Whether it is the best engineering solution or not doesn't mean the problem has not been solved.

1. The Opponent and Mr Spry concede that a redesign of D1's joint would be necessary to remove the central connecting bolt, but state that redesigning the joint is what a competent engineer would be able to do.[60] I agree that a competent engineer, and the person skilled in the art, would be able to redesign the joint in the manner claimed if the problem of snagging on the central connector was identified. Further, based on Mr Spry's evidence I believe this would be an obvious step.

1. However, I am not persuaded that this is an obvious problem with D1. While it is apparent to any engineer or technician that multiple rotations of the first member relative to the second member would cause wrapping of the cable around the central pin, this wrapping does not necessarily result in problems with snagging or wear. There is no evidence that operation of D1, and particularly contact between the cylindrical central connector and an electrical cable, would result in any meaningful wear. Thus, there is insufficient evidence to demonstrate a problem of snagging or wear on a cable due to the central connecting pin. It follows that I cannot be persuaded that the person skilled in the art would be directly led to modifying D1 and redesigning the joint in the manner claimed.

1. It follows that Claim 1, and therefore all of the claims, are inventive in light of D1 and common general knowledge.

1. The Opponent has also submitted that the claims lack an inventive step when D1 and D3 and common general knowledge are combined, or alternately when D1 and D5 and common general knowledge are combined. In both combinations the Opponent has started with D1 and identified the same problem as given above.

1. I am not persuaded that the problem of cable snagging and wear is present in D1 for the same reasons as given for D1 and common general knowledge alone. Thus, while the person skilled in the art would have no difficulty combining the documents and arriving at the claimed solution there is no motivation for them to do so. It cannot be said that the person skilled in the art would be directly led to this solution - there is no problem with D1 which needs to be solved.

1. The Opponent also submitted that each of D3, D5, D8 and D9 lacked an inventive step when each is individually combined with common general knowledge. They submitted that any minor distinction would be nothing more than routine matters of implementation.[61] This is as far as the submissions go. Noting the sparse detail regarding these combinations the Applicant's rebuttal is also relatively sparse.

1. I found in the novelty section above that the heads (bearing faces) in D3 have free relative swivelling movement. This teaches away from locking the heads into position and restricting rotation. While it is trivial to modify an component to make it thicker and prevent this rotation, D3 teaches away from that solution. I do not see how the person skilled in the art would be directly led to modifying D3 in the manner claimed. It follows that Claim 1 and all dependent claims are inventive in light of the combination of D3 and common general knowledge.

1. As above, I have found the Claims 1, 2 and 4 lack novelty in light of D5. They lack an inventive step for the same reasons. Below I address each of the residual dependent claims.

1. Claims 3 and 5 require an oval-shaped opening in the first or second bearing face, respectively. D5 deliberately adds flaring to modify (implicit) ellipse-shaped bearing faces into circular bearing faces. D5 therefore teaches away from using an oval interface. Further, the evidence does not establish there was an obvious need or desire for oval-shaped openings. These claims are therefore inventive.

1. Claims 6-7: The Opponent has submitted that the second embodiment of D5 contains a locking pin in the form of screw 23 (not shown). For the reasons given in the novelty section I am not persuaded that this embodiment of D5 is relevant - the skirt is not disclosed. By using the second embodiment, which removes the components which provide the skirt function, the person skilled in the art would then need to implement an alternate skirt. The evidence does not support the person skilled in the art being directly led to this situation. It follows that Claim 6, and therefore claim 7, is inventive in light of D5 and common general knowledge.

1. Claim 8: defines "An elongate member for locating articles remote from a base position having a swivelling joint as claims [sic] in any one of claims 1 to 7." Mr Spry has only stated "The joint in D5 has an elongate member which could be suitable for locating articles remote from a base position"[62] when addressing this claim with D5. No further detail is available. The Applicant has rebutted this simply with "[Mr Spry] does not not [sic] suggest that there are any directions (unmistakeable or otherwise) to use the pipe joint in such a manner."[63]

1. Both the Opponent's and the Applicant's submissions were in relation to novelty. There are no other submissions related to Claim 8 and inventive step. This leaves me in the position where the evidence as presented by both parties does not fully address the issue at hand. However, the title of D5 and its first sentence make it very clear that the joint is suitable for use with (electrical) conduits and the like. At the time D5 was published, the material would have been a metal of some description - it being published before plastics were in common use. From my own personal experience walking through hardware stores I am fully aware that electrical conduits are typically elongate members and may be of a range of lengths and geometries. This can also be confirmed via any internet search of the term "electrical conduit". Further, D5 screw threads 17 and 18 indicate that conduits with matching screw threads are to be attached to the joint.

1. It follows that it is obvious to attach an elongate member to the joint of D5. The entire point of D5 is to provide a rotating joint to enable the connection of electrical conduits together, the joint being able to be locked in particular location. Thus, I consider that the title and first sentence of D5 directly lead the person skilled in the art to the use of elongate members in conjunction with the joint of D5. Electrical conduit is suitable to be attached to a base or via some other mounting means. Thus, the swivelling joint, any internal electrical cabling, second electrical conduit, any many other items are all suitable to be located remote from the base position. Therefore, following the obvious addition of electrical conduits to D5's joint designed to interface with electrical conduits, the person skilled in the art would be directly led to the proposed invention of Claim 8.

1. Claim 9: As above, the common general knowledge includes a variety of conduit lengths. The selection of a particular minimum length, in the absence of any particular technical effect, is an obvious and routine process. Claim 9 therefore lacks an inventive step with respect to D5.

1. Claim 10: While I found that Claim 1 is suitable for use in a light pole, that is different to being directly led to using the joint of D5 in a light pole with an elongate member as indicated by Claims 8 or 9. Claim 10 is inventive with respect to D5. There is nothing in evidence which directly leads the person skilled in the art to do so. Claim 10 is inventive with respect to D5.

1. I found in the novelty section above that the dovetail in D8 and in D9 does not act as a skirt. The dovetail in both of these applications is an essential component which is used to enable rapid assembly and disassembly. It cannot be modified to provide the functionality of a skirt without requiring significant efforts in redesigning the entire joint.

1. Based on the evidence before me I cannot find that the person skilled in the art would be directly led to modify the dovetail of D8 or D9 such that it formed a skirt. Nor is there sufficient evidence that an external skirt would be added in place of any other form of technology, such as a seal. It follows that I cannot find that Claim 1 lacks an inventive step with respect to D8 or D9.

1. Section 40(3) of the Act requires that the claims be clear and succinct and supported by matter disclosed in the specification.

1. In CSR Building Products Limited v United States Gypsum Company[64], a Deputy Commissioner determined that the steps involved in assessing whether the disclosure requirement is satisfied are:

(i) Construe the claims to determine the scope of the invention as claimed;

(ii) Construe the description to determine what it discloses to the person skilled in the art; and

(iii) Decide whether the claims are supported by the technical contribution to the art."[65]

1. The approaches taken in CSR found approval with the Federal Court in Merck Sharp & Dohme Corporation v Wyeth LLC (No 3)[66], Cytec Industries Inc. v Nalco Company[67], and several others.

1. The Opponent submits that feature 1.8, the functional use of a skirt, lacks support for being claimed too broadly. The submission contends that the claimed feature does not specify any structural relationship between the skirt, the first member, the second member, or the joint as a whole.[68] The Opponent argues that the skirt is only described in one manner within the embodiments, and "only as an outer wall depending on the second member and locating over the first member."[69] Mr Spry originally submitted that using a separate skirt "would require a significant redesign effort to design and integrate such a skirt that is [a] separate part to the upper section or member".[70]

1. Mr Hughes submitted that specifying where the skirt attaches to the joint is not a necessary limitation provided that the skirt performs the desired function. Then Mr Hughes provides some other examples of skirts which are to be attached to an arm of the joint via separate clamping rings in BDH-3 and BDH-4. Mr Hughes also stated that there was no burden placed on the skilled addressee to implement a different type of skirt.[71]

1. Mr Spry, in response, stated that alternate configurations of a skirt, such as a flexible skirt, are not a practical solution to the problem. The reason being the locking parts of the joint cannot be accessed easily, and the skirt might interfere with observing the locking pin.[72]

1. It is apparent that the concept of a skirt and its desired functionality is part of the technical contribution. Mr Spry gives a good, functional definition of what a skirt entails when presenting his construction of the invention.[73] Mr Spry does not indicate there are any technical challenges in adding a skirt, rather that the embodiments shown only utilise one type of skirt.[74]

1. The issue appears primarily to be a case of whether the skirt and its implementation as described embody a principle of general application, or whether the details of the skirt are essential to the implementation.

1. Mr Spry provides only one example where he believed a separate skirt could not be made. This was countered by Mr Hughes' evidence of flexible skirts attached to similar poles/joints. The example given by Mr Hughes was within the scope of Mr Spry's construction of the skirt feature. The example is simple enough that the person skilled in the art could implement it using nothing more than what is (likely to be) common general knowledge, noting that the Opponent did not pursue that skirts are not part of the common general knowledge. Further, no other examples were given by Mr Spry which would indicate that the person skilled in the art could not implement a particular type of skirt with this desired functionality using only their common general knowledge.

1. Mr Spry's response then focused on aspects which would reduce practicality of the example, not that Mr Hughes' example wasn't a viable option or that it wasn't supported. Based on the evidence before me I cannot find that Claim 1 lacks support.

1. I have found that claims 1, 2, and 4 lack novelty in light of D5. Further, Claim 8 and 9 also lack an inventive step in light of D5 and common general knowledge. All other grounds of opposition are unsuccessful.

1. While the Opponent has submitted that the application should be refused,[75] this is not an avenue which should be pursued at this time. The specification contains significant content which could form the basis for an allowable amendment to overcome my findings. I therefore give the Applicant 2 months to propose suitable amendments to overcome the above deficiencies.

1. Costs usually follow the event. While Regulation 5.23 requests may sometimes result in an alteration to costs, that is not the case here. Both parties and their experts addressed the documents D1-D9 during the regular course of the opposition. No additional expense was incurred from the introduction of these documents. Similarly, the request to add document D10 did not require any additional expense on the part of the Applicant as it was not necessary to obtain further comment on that document. Similarly, the amendment to the SGP did not incur any significant cost or have any meaningful effect on the opposition. Thus there are no factors which arise that demonstrate I should depart from the usual practice. I therefore award costs according to Schedule 8 against the Applicant.

1. A swivelling joint for use in light poles including a first member and a second member;

the first member being associated with a first leg, the first leg having a longitudinal direction, the first member having a bearing face that is oriented at an acute angle relative to the longitudinal direction of the first leg, the bearing face of the first member including an opening in communication with the first leg;

the second member being associated with a second leg, the second leg having a longitudinal direction, the second member having a bearing face that is oriented at an acute angle relative to the longitudinal direction of the second leg, the bearing face of the second member including an opening in communication with the second leg;

a connection means acting to prevent axial movement of the first member relative to the second member;

a locking means arranged to selectively permit or restrict rotation of the first member relative to the second member;

at least one of the first member and the second member having a tapered connection portion between the associated leg and the associated bearing face;

wherein the swivelling joint includes a hollow void at its centre, the hollow void being free of mechanical linkages such that electrical cabling can pass unimpeded through the void;

and wherein the swivelling joint includes a skirt arranged to locate about the bearing face of the first member in order to limit the ingress of dust and/or water into the first leg.

2. A swivelling joint as claimed in claim 1, wherein the opening of the bearing face of the first member is circular.

3. A swivelling joint as claimed in claim 1, wherein the opening of the bearing face of the first member is oval shaped.

4. A swivelling joint as claimed in any preceding claim, wherein the opening of the bearing face of the second member is circular.

5. A swivelling joint as claimed in any one of claims 1 to 3, wherein the opening of the bearing face of the second member is oval shaped.

6. A swivelling joint as claimed in any preceding claim, wherein the locking means includes a locking pin.

7. A swivelling joint as claimed in claim 6, wherein one of the first and second members includes a locking pin housing located on an outer surface thereof, the locking pin housing including an activating means for selectively engaging or disengaging the locking pin.

8. An elongate member for locating articles remote from a base position having a swivelling joint as claims in any one of claims 1 to 7.

9. An elongate member as claimed in claim 8, having length of at least 1.5m.

10. A light pole being an elongate member as claimed in claim 8 or claim 9.

[6] Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 at [70].

[11] Jupiters v Neurizon [2005] FCAFC 90 at [67]

[12] See, for example, Thurston Catton's Application (1978) AOJP 3666

[13] Spry1 at [66]; OWS at [43]-[44]

[17] AWS at [29]; Macquarie Dictionary https://app.macquariedictionary.com.au/?search_word_type=dictionary&word=pole

[19] Macquarie Dictionary https://app.macquariedictionary.com.au/?search_word_type=dictionary&word=tapered

[26] https://app.macquariedictionary.com.au/?search_word_type=dictionary&word=article

[27] E.g. [0051] 'annular base 22', [0055]

[28] Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) CLR 228 at [235]

[31] D5 Col 2 lines 92-97 "It will be understood that by loosening the clamping ring, parts 10 and 11 can be swiveled to any desired angle and thereafter the clamping ring can be tightened up to secure the abutting elements in the desired relative angular relation."

[41] AWS at [63], referencing to AWS at [31]-[34]

[44] [2020] FCA 1686 at [116]- [117] (citations omitted)

[45] OWS at [112]-[113]; and obliquely, AWS at [86]

[64] CSR Building Products Limited v United States Gypsum Company [2015] APO 72 (CSR)

[66] Merck Sharp & Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477 at [546]- [547]

[67] Cytec Industries Inc. v Nalco Company [2021] FCA 970 (Cytec) at [143]-[149]; [2021] FCA 970; 162 IPR 202.